Looking for creative legal marketing? Try doughnuts.

Law firm-branded coffee mugs; golf umbrellas with the firm logo; managing-partner bobble-head dolls — giving away law firm tchotchkes like these is often part of a firm’s marketing program. (Well, maybe not the bobble-heads; I made that one up.)

But how about delivering doughnuts to banks and real estate agents to encourage them to refer clients to your law firm?

The South Carolina bar ethics advisory committee has recently given its OK to that caloric give-away — but only as long as the referral sources get the goodies whether or not they actually send any clients to the firm.

Giving away law firm swag, and more

The inquiring law firm wanted to initiate a weekly program that would involve a firm employee delivering doughnuts, discount coupons for legal services and cup-holders (with the firm logo, of course) to existing vendors, in order to promote the firm.

The vendors to receive the “Donut Friday” promotion included banks and real estate agents who were in a position to send clients to the firm for legal work, and the intent of the promotion was to encourage such referrals. The promotion package also included a firm brochure and fee sheet.

As an initial consideration, the state bar ethics committee said that “the mere delivery of gifts or other marketing materials to a business generally, without delivery to specific individuals, does not constitute a solicitation” of legal business within the meaning of the state’s version of Model Rule 7.3.

That common-sense approach avoided a tortured analysis that would have necessarily centered on whether delivering a doughnut or a mug was a prohibited “in person, live telephone or real time electronic contact” aimed at soliciting professional employment from a prospective client.

Quid pro quo for referrals?

But the law firm’s plan did require consideration of the state’s version of Model Rule 7.2(b), which bars giving “anything of value to a person for recommending the lawyer’s services,” with certain exceptions.

The committee viewed the key prohibition of the rule to be the element of quid pro quo. “As long as the weekly donuts and other donut-box contents are delivered regardless of whether the vendor had referred clients to Law Firm that week, and regardless of how many, then the requisite quid pro quo for a … violation does not exist,” the committee opined.

On the other hand, if delivery of the diet-busting delicacies “were contingent on the referral of clients to Law Firm, the practice would violate the rule,” the committee explained.

The committee added that the inclusion of the firm’s brochure and fee sheet along with the sweets also invoked the state’s version of Model Rule 7.1, the general advertising rule prohibiting any false or misleading communication about the lawyer or the lawyer’s services.

Karen is a member of Thompson Hine’s business litigation group. She is a member and former chair of the Certified Grievance Committee of the Cleveland Metropolitan Bar Association, and a member and past chair of the Ohio State Bar Association’s Ethics Committee. She also chairs that committee’s Ethics Opinions subcommittee, and has authored several ethics opinions on behalf of the OSBA interpreting the Ohio Rules of Professional Conduct. Karen also is an adjunct professor at Cleveland-Marshall College of Law, teaching legal ethics.

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The Law for Lawyers Today is a resource for law firms, law departments and lawyers needing information to meet the challenge of practicing ethically and responsibly. Here you’ll find timely updates on legal ethics, the “law of lawyering,” risk management and legal malpractice, running your legal business— and more.

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